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Seating Franken might raise constitutional issues

"Each House shall be the judge of the elections, returns and qualifications of its own members."

That section of the Constitution makes it sound as though the Senate can do whatever it wants when it comes to deciding its membership.

"If a 15-year-old boy came up here with a certificate of election and we seated him, he would be a United States Senator, and there's no power on earth, which could take him out, except the people at the next election," then-U.S. Sen. Thomas Connally, D-Tex., proclaimed in 1935.

But it might not be that simple this time.

Franken meets with ReidBrendan Hoffman/Getty Images

The 15-year-old boy in Connally's hypothetical example had something Al Franken doesn't: a certificate of election.

The governor and the secretary of state have both refused to give Franken a certificate. They argue state law forbids them to issue one until Coleman's lawsuit is settled.

Without an election certificate, the Senate Democrats impatient to seat Franken might be out of luck.
"Everyone has to present a certificate signed by the governor, co-signed by the secretary of state. [That Senate rule has] never been waived in the history of the United States Senate," U.S. Sen. Dick Durbin, D-Ill., told reporters this month.

Durbin was not talking about Franken's situation. He was explaining the Senate's rationale for not seating Roland Burris, who owed his appointment to embattled Illinois Gov. Rod Blagojevich.

But Senate Democrats dropped their objections and seated Burris. That might be because the Constitution probably required them to seat him.

In the late 1960s, the U.S. House tried to use its power to judge "elections, returns and qualifications" to exclude U.S. Rep. Adam Clayton Powell, D-N.Y. But Powell fought back, arguing that alleged financial misdealings are not disqualifications to serve in Congress.

"The question as to who may be the freely chosen representatives of the people has not been confided by the Constitution to the exclusive control of the Legislature," Powell attorney Arthur Kinoy argued before the U.S. Supreme Court in 1968. "Quite to the contrary, it has been confided by the Constitution to the ultimate branch of government: The sovereign people!"

It worked. The court ruled the House should not have excluded Powell. They said the only "qualifications" the House could judge were the ones set out in the Constitution itself: age, residency and citizenship.

Since Powell was a duly elected resident of New York state, a U.S. citizen and more than 25 years old, the House had to seat him.

Since there are limits on the House and Senate's power to judge "qualifications," there may be limits on their ability to judge elections and returns as well. The Senate clearly has the power to overrule whatever the Minnesota courts decide, but the Senate may not be allowed to consider the case until Minnesota has its say.

"Otherwise anybody can present themselves to the Senate and say, 'well, I'm the new Senator from Minnesota,'" University of Minnesota law professor Guy Charles argues. "That's not the process that the Constitution has set up."

While the constitution makes the Senate the final judge of senatorial elections, it puts the states in charge of running elections. And in Charles's analysis, the state's election isn't complete until it's been certified.

"Professor Charles has a good argument and he may be right, but there are arguments on the other side," Vanderbilt University law professor Suzanna Sherry countered.

Sherry argues that the Senate's authority over its membership is broad.

"That gives them the power to do recounts, which they have done on occasion. It gives them the power to seat people provisionally while, say, the state is doing a recount. And presumably it gives them the power to decide whether to seat people with or without a certificate of election," she said.

Both Sherry and Charles agree this would be uncharted territory. Charles did some additional research and found that the Senate has intervened in more than 100 close elections over the years. But as far as he could tell, it has never done so before the state issued an election certificate.

Franken's lawyers have asked the Minnesota Supreme Court to force the state to issue an election certificate, even though Coleman's legal challenge is still pending. The court will hear arguments on that next week.